Monday, May 28, 2012

Wrongful dismissal action by an employee who moved across the country

Put briefly, Mr. Staley worked for Squirrel since 1995 in Burnaby, starting as a call centre agent but working his way up through the ranks. In 2009, he married a Mountie, who was trying to secure a posting in her home Province of Quebec. She eventually got the posting, and so Mr. Staley and his wife sold their condo in Chilliwack and moved to Montreal in September 2010. When Mr. Staley thereafter refused to report in to the office, he was dismissed. So he sued for wrongful dismissal.

Never quite that simple, of course. There had been ongoing discussions with the employer about potentially arranging the employment to function as a long-distance relationship, so to speak. Staley first told his supervisor in April 2010 about the possibility of an eventual move, wanting to continue his work from Montreal. The supervisor was open to the idea of hiring him on as a contractor working remotely from Montreal. What exactly was said in the April conversation is in question, and is important because it appears that Staley walked away thinking that he would be able to keep working from Montreal, and the supervisor walked away thinking that, if and when it happens, we'll talk about it.

When Staley left in September, he continued his duties remotely, and was permitted to do so. In late October, the employer wrote to the plaintiff noting (in language that I'm guessing came from a lawyer) that he had asked to alter the terms of employment to permit him to work from Montreal, and that the employer "temporarily permitted" remote duties "while we consider your request", with the final decision being under consideration by senior management. Staley took issue with this, and sent a reply summarizing various conversations in which he alleged that the employer had agreed to let him work from Montreal. They had further discussions trying to reach an agreement to new contractual terms, but nothing was ever signed, and eventually (March 2011) the employer gave the employee notice that he would be required to resume reporting to the office in Burnaby as of July 2011. This was not an option from Staley's perspective, so they were at an impasse, and the employer dismissed him.

Staley sued, but was unsuccessful. He argued that he had relied upon representations by his supervisor that he would be able to continue to work from Montreal. (It appears that he probably would have moved either way, but his unemployment would have affected their decision to purchase the house they did.) The Court concluded that there had been a misunderstanding, and essentially felt that Staley was making a very tall order, and "it was not reasonable for him to make his commitment to Montreal on the basis that his continued employment was assured."

Accordingly, Staley's refusal to report to work constituted abandonment of his position, or insubordination, and either way permitted the employer to dismiss him.

My Thoughts
Considering the facts, the employer came awfully close to very substantial liabilities. The Court's assessment of the plaintiff's conduct is probably fair - if you're going to move across the country and want some assurances that you'll still have your job, get it in writing. Work out the details before you move. Don't have a few casual conversations about it and assume that the whole thing will be fine.

Still, the employer could easily have been hanged by the fact that it doesn't appear to have specifically advised the plaintiff of its position that its acceptance of the arrangement was 'temporary' and subject to senior management approval until it had already existed for a month.

The Court concludes that, in the discussions leading up to the move, neither the word 'temporary' nor 'permanent' was used by the employer. However, in the absence of that kind of express language, it would be very easy for a Court to conclude that the employer, by permitting Staley to work from Montreal, had agreed to change the employment relationship on an indefinite basis.

There was an internal email circulated when Staley moved, stating that he was now an independent contractor. Not too much was made of it in the judge's reasons. It would have been difficult for the employer to use that email to take a position that the employment relationship had ended and Staley was now an independent contractor, but more importantly that would not have been a helpful position for the employer - there is little doubt that, had it been agreed that Staley would work as an independent contractor working from Montreal, this would have put him, at best, into the intermediary category of employment relationships, which would still have entitled him to reasonable notice in the absence of enforceable written language to the contrary.

I find it difficult to reconcile that email with the judge's conclusion that the employer's tolerance of Staley working from Montreal was temporary and subject to final approval. There doesn't appear to have been any actual evidence of the employer reserving a right to require Staley to return until late October, and that October letter has a certain lawyerly air to it, as if they had gotten their lawyers involved at that point because they had decided not to permit him to continue and therefore wanted to end the employment relationship, and the lawyers opined that they had not been clear enough in asserting an entitlement to do so. That sort of letter, clarifying your position, can be very helpful later on if the recipient doesn't challenge the assertions in it. Silence gives consent, as they say. In this case, however, the employee answered immediately with a 'Hang on, where's this coming from?' type of response, which ultimately set the stage for a legal dispute in which the employer was fortunate to have been successful.

If the employer had been clearer from the outset, however, there would have been no reason for a legal dispute to have been necessary in the first place.

*****

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.